Karnataka High Court

M/S Icici Lombard Motor Insurance vs Smt Geetha V on 2 June, 2022

Bench: H T Prasad

                        1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF JUNE 2022

                     BEFORE

  THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

            MFA No.2667 OF 2018(MV)
BETWEEN:

M/S ICICI LOMBARD MOTOR INSURANCE
COMPANY LTD.,
MOTOR CLAIMS HUB, NO.121,
THE ESTATE BUILDING, 9TH FLOOR,
DICKSON ROAD,
BANGALORE - 560 001.
REP BY ITS MANAGER.
                                        ...APPELLANT
(BY SRI. H.N.KESHAVA PRASHANTH, ADV.)

AND:

1. SMT.GEETHA V,
   W/O LATE VENKATARAMANAPPA,
   NOW AGED ABOUT 37 YEARS,

2. MR. MADHUSUDHANN H.V.,
   S/O LATE VENKATARAMANAPPA,
   NOW AGED ABOUT 20 YEARS,

3. MASTER ABHISHEK.H.V.,
   S/O LATE VENKATARAMANAPPA,
   NOW AGED ABOUT 18 YEARS,

ALL ARE RESIDING AT #220/1,
MUNESHWARA NILAYA, 1ST CROSS,
KAMMAVARI NAGARA, NEAR HP GAS GOWDOWN,
M.V.EXTENSION, HOSKOTE,
                             2



BANGALORE RURAL DISTRICT - 562 114.

4. MR.CHAKRAPANI NALLAKUKKALA,
   S/O N.MUNIRATHNAM,
   NARAHARIPETA VILLAGE & POST,
   GURIPALA(M), CHITOOR DISTRICT,
   ANDHRA PRADESH - 517 132.
                                     ...RESPONDENTS
(BY SRI. K.T.GURUDEVA PRASAD, ADV. FOR R1 TO R3;
     NOTICE TO R4 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD DATED
30.08.2017 PASSED IN MVC NO.4232/2016 ON THE FILE
FO THE MACT, ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, MAYO HALL UNIT, BENGALURU, V ADDL SCJ & 24
ACMM, (SCHH-19), AWARDING        COMPENSATION OF
RS.21,83,000/- WITH INTEREST @9% P.A. FROM THE
DATE OF PETITION TILL REALIZATION.

    THIS MFA COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the Insurance Company

being aggrieved by the judgment dated 30.08.2017

passed by the Motor Accident Claims Tribunal,

Bengaluru in MVC No.4232/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 16.05.2016 at about 01.50

A.M., the deceased was traveling in a TATA ACE

bearing Registration No.KA-53/9017, proceeding on

Hosakote-Bengaluru NH-75 road driven by its driver

slowly and cautiously, when they reached near

Medanahalli flyover, Bidarahalli Hobli, Bengaluru

District, at that time, the driver of a Car bearing

Registration No.AP-03/AZ-8919 drove the same in a

rash negligent manner with high speed, dashed to

TATA ACE from behind. As a result of the aforesaid

accident, the deceased sustained grievous injuries and

succumbed to the injuries.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondent

No.1 appeared through counsel and filed written

statement in which the averments made in the

petition were denied. It was pleaded that the petition

itself is false and frivolous in the eye of law. The

driver of the offending vehicle did not possess valid

driving licence as on the date of the accident. The

liability is subject to terms and conditions of the

policy. The age, occupation and income of the

deceased are denied. It was further pleaded that the

quantum of compensation claimed by the claimants is

exorbitant. Hence, he sought for dismissal of the

petition.

The respondent No.2 did not appear before the

Tribunal inspite of service of notice and hence was

placed ex-parte.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-1

and got exhibited documents namely Ex.P1 to Ex.P12.

On behalf of respondents, neither examined any

witness nor exhibited any document on their behalf.

The Claims Tribunal, by the impugned judgment, inter

alia, held that the accident took place on account of

rash and negligent driving of the offending vehicle by

its driver, as a result of which, the deceased sustained

injuries and succumbed to the injuries. The Tribunal

further held that the claimants are entitled to a

compensation of Rs.21,83,000/- along with interest at

the rate of 9% p.a. and directed the Insurance

Company to deposit the compensation amount along

with interest. Being aggrieved, this appeal has been

filed by the Insurance Company.

6. Sri H. N. Keshava Prashanth, the learned

counsel for the Insurance Company has raised the

following counter-contentions:

Firstly, even though the claimants claim that the

deceased was earning Rs.1,000/- per day, the same is

not established by the claimants by producing

documents. Therefore, the monthly income assessed

by the Tribunal Rs.12,000/- in on higher side.

Secondly, in view of the law laid down by the

judgment of the Apex Court in the case of NATIONAL

INSURANCE CO. LTD. -v- PRANAY SETHI AND

OTHERS [AIR 2017 SC 5157], the Tribunal instead

considering 25% of the income of the deceased

towards 'future prospects', has considered 30%.

Thirdly, in view of the law laid down by the

judgment of the Hon'ble Supreme Court in the case of

MAGMA GENERAL INSURANCE CO. LTD. -V- NANU

RAM [2018 ACJ 2782], the compensation awarded by

the Tribunal towards 'love and affection' and

'consortium' are on higher side.

Lastly, in view of judgment of the Division Bench

of this Court in the case of MS.JOYEETA BOSE AND

OTHERS vs. VENKATESHAN.V AND OTHERS (MFA

5896/2018 and connected matters disposed of on

24.8.2020), the claimants are entitled for 6% interest

but the Tribunal has granted 9% interest is on the

higher side. Hence, he sought for allowing the appeal

filed by the Insurance Company.

7. Sri K. T. Gurudrva Prasad, learned counsel

for the claimants has raised the following contentions:

Firstly, the claimants claim that the deceased

was earning Rs.1,000/- per day by doing vegetable

business. The Tribunal considering the age and

avocation of the deceased, has rightly assessed the

monthly income of the deceased as Rs.12,000/-.

Secondly, considering the age, avocation of the

deceased, the overall compensation awarded by the

Tribunal is just and reasonable. Hence, he prays for

allowing the appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that Venkataramanappa

died in the road traffic accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

The claimants claim that deceased was earning

Rs.1,000/- per day. But they have not produced any

documents to prove the income of the deceased. In

the absence of proof of income, the notional income

has to be assessed. As per the guidelines issued by

the Karnataka State Legal Services Authority, for the

accident taken place in the year 2016, the notional

income of the deceased has to be taken at Rs.9,500/-

p.m.

To the aforesaid income, 25% has to be added

on account of future prospects in view of the law laid

down by the Constitution Bench of the Supreme Court

in 'PRANAY SETHI' (supra). Thus, the monthly income

comes to Rs.11,875/-. Since there are three

dependents, it is appropriate to deduct 1/3rd of the

income of the deceased towards personal expenses

and the monthly income comes to Rs.7,917/-. The

deceased was aged about 41 years at the time of the

accident and multiplier applicable to his age group is

'14'. Thus, the claimants are entitled to compensation

of Rs.13,30,056./- (Rs.7,917*12*14) on account of

'loss of dependency'.

In addition, the claimants are entitled to

compensation of Rs.15,000/- on account of 'loss of

estate' and compensation of Rs.15,000/- on account

of 'funeral expenses'.

In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL INSURANCE'

(supra), claimant No.1, wife of the deceased is

entitled for compensation of Rs.40,000/- under the

head of 'loss of spousal consortium', claimant Nos.2

and 3, children of the deceased are entitled for

compensation of Rs.40,000/- each under the head of

'loss of parental consortium'.

10. Thus, the claimants are entitled to the

following compensation:

        Compensation under       Amount in
           different Heads         (Rs.)
       Loss of dependency         13,30,056
       Funeral expenses              15,000
       Loss of estate                15,000
       Loss of spousal               40,000
       consortium
       Loss of Parental               80,000
       consortium
                      Total       14,80,056

11. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimants are entitled to a total

compensation of Rs.14,80,056/- as against

Rs.21,83,000/- awarded by the Tribunal.

In view of judgment of the Division Bench of this

Court in the case of 'MS.JOYEETA BOSE', the interest

awarded by the Tribunal 9% is scale down to 6%.

The Insurance Company is directed to deposit

the compensation amount along with interest at 6%

p.a. from the date of filing of the claim petition till the

date of realization, within a period of six weeks from